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October 17, 2007

The crazy, Baze-y lethal injection uncertainty continues

Monday brought a last minute state court stay of a scheduled execution in Nevada (discussed here).  But then we got rulings in Georgia and Virginia which keep scheduled executions on track: in the Virginia case, as detailed here, the Fourth Circuit refused to grant a stay; in the Georgia case, as detailed here, the state Supreme Court refused to grant a stay.  But, then, late Tuesday, the US Supreme Court refused to vacate a stay granted by the Eighth Circuit in an Arkansas case.  Here is the notable text of the SCOTUS order in the Arkansas case:



The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eighth Circuit on October 11, 2007, presented to Justice Alito and by him referred to the Court, is denied.

Justice Scalia, dissenting.

I vote to grant the State’s application to vacate the stay because in my view the decision of the Eighth Circuit was based on the mistaken premise that our grant of certiorari in Baze v. Rees, ___ S. Ct. ___ (2007), calls for the stay of every execution in which an individual raises an Eighth Amendment challenge to the lethal injection protocol.  The grant of certiorari in a single case does not alter the application of normal rules of procedure, including those related to timeliness. In this case, Jones’s challenge to the lethal injection protocol, which was brought nine years after his conviction and sentence became final, was dilatory.

October 17, 2007 at 01:37 AM | Permalink


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Scalia is, of course, right.

Posted by: federalist | Oct 17, 2007 8:50:33 AM

Scalia is, of course, consumed with bloodlust and apparently blind to any doctrine of equitable relief. God forbid that we pause a scheduled execution while the Supreme Court determines whether the method by which the State plans to kill its citizen violates our Federal constitution. The horrors!

Posted by: anti-federalist | Oct 17, 2007 8:55:48 AM

Scalia is, of course, right.

He may be right, but he isn't "of course" right. Otherwise, his position would have attracted more votes.

Posted by: Marc Shepherd | Oct 17, 2007 9:10:52 AM

Scalia is not right. He is dead wrong. One can never be too late to complain about a prospective injury. A TRO could never be denied on such a basis. In fact, imminence of injury is a requirement. Unless, of course, the law is irrelevant, which it typically is when the courts deal with death-sentenced persons.

Posted by: DK | Oct 17, 2007 10:10:54 AM

Read Hill v. McDonough. But, of course, with the Supremes, it's do as I say, not as I do.

Posted by: federalist | Oct 17, 2007 10:44:04 AM

Did the 8th Cir. actually say that it felt that it HAD to grant a stay because of the cert grant in Blaze? Or did it just grant a stay without explanation, or did it grant a stay becuase, although it didn't have to do so, it felt that doing so was right in light of the cert grant in Blaze?

If it's the first scenario, then Scalia might have a point. If it's either of the later two (as I suspect it is), then Scalia just wants to insert his judgment for that of the 8th Cir., and the court was right to tell him to go fly a kite.

Posted by: Anon | Oct 17, 2007 12:30:43 PM

The Eighth Circuit just granted the stay without explanation. Judge Gruender wrote a three page dissent.

A party with a final judgment is entitled to have it executed absent a legal reason not to. Judges feeling that doing so is right is not a legal reason in "a government of laws and not of men."

Posted by: Kent Scheidegger | Oct 17, 2007 1:02:34 PM

So Scalia, without the benefit of briefing and argument and without even a written memorandum or explanation, is divining what was in the heads of the judges who granted the stay. Must be nice to be omnipotent.

If the law allows the judge to grant a stay becuase, in the judge's opinion, doing so is proper, then it is a government of laws, not men. Any complaint here that what the 8th Cir. did was illegal? Didn't think so.

Posted by: Anon | Oct 17, 2007 1:15:14 PM

Actually, I think that's exactly what Scalia was saying - that as a matter of law, 9 years after your conviction becomes final is too late to permit a stay to be issued based on a belated challenge to the L.I. protocol.

Posted by: JustClerk | Oct 17, 2007 1:25:08 PM

"If the law allows the judge to grant a stay because, in the judge's opinion, doing so is proper...."

Would you care to cite some authority that your premise is, in fact, the law?

Posted by: Kent Scheidegger | Oct 17, 2007 1:57:28 PM

Kent, isn't that a basic statement of a judge's powers in equity? We do operate in the common law legal tradition, no, in which courts do exercise equitable powers?

Posted by: re:Kent | Oct 17, 2007 2:29:04 PM

"Kent, isn't that a basic statement of a judge's powers in equity?"

That a judge can issue an order any time he thinks it's the right thing to do, unbounded by any standards? I don't think so. I'm still waiting for Anon to provide some support for his view that it is.

Posted by: Kent Scheidegger | Oct 17, 2007 2:49:06 PM

Kent, that doesn't accurately describe this situation at all.

Here, we have the Supreme Court recently agreeing to consider whether a method by which the state kills its citizens violates the Constitution. A citizen about to be killed by the state requests that the state hold off on killing him until the Supreme Court settles this issue. For that Court to grant the request to pause the proceedings isn't an unreasonable exercise of judicial power in the common law legal tradition.

Posted by: re:Kent | Oct 17, 2007 3:38:45 PM

Kent, I have no idea what the law surrounding the ability of a federal appeals court to grant a stay of execution is. Please enlighten me. But I'm willing to bet, and I know you'll correct me if I'm wrong, that there are very few (if any) occasions where the court is forbidden from issuing such a stay. I'm sure the court rarely, if ever, has to grant a stay. But I'm betting - and again, please correct me if I'm wrong and I'll stand corrected - that the court is rarely, if ever, forbidden from doing so.

So at absolute most, one could claim that the 8th Cir. decision was an abuse of almost limitless discretion. Not surprisingly, the Court wasn't willing to hold as much.

Posted by: Anon | Oct 17, 2007 7:55:24 PM

As a death penalty supporter, I have no problem with these stays. One can hope that a resolution of Baze will end the whole lethal injection mess -- or at least make it less messy! No sense in having a bunch of pointless litigation prior to that.

Posted by: William Jockusch | Oct 18, 2007 11:23:08 AM

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